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Willoughby v. The Wolfson Group, Inc.

332 N.J. Super. 223, 753 A.2d 162 (App. Div. 2000)

ZONING; REZONING—Even though a municipal governing board fully explains its reasons for passing a re-zoning ordinance, if it mistakenly acted as though the amendment was consistent with the master plan, the ordinance is invalid.

A developer sought to develop property for retail use, but it was zoned Office Campus, and retail uses were not permitted in such a zone. It requested a zoning change and submitted its plan for development. The municipality’s planning board voted unanimously to recommend to the governing body that the tract be re-zoned. The governing board adopted such an ordinance. Both the board and the governing body explained in detail their reasons for re-zoning. Both found the re-zoning to be consistent with the master plan. In a prior ruling, the Appellate Division had held that the amendment to the zoning ordinance was substantially inconsistent with the municipality’s master plan and, therefore, the governing body had to comply with N.J.S. 40:55D-62a. The relevant portion of that section permits a governing body to adopt an amendment to a zoning ordinance inconsistent with the master plan if a “majority of the full authorized membership of the governing body” votes for it. The section also required that the governing body’s reasons “for so acting” must be expressed “in a resolution and recorded in its minutes.” Here, the governing body had determined that the proposed amendment was consistent with the master plan. Nevertheless, the governing body explained in detail its reasons for changing the zoning of the tract in question. In a prior visit to the Appellate Division, another issue was remanded to the lower court. That issue was whether the planning board’s resolution and the “whereas” clauses in the governing body’s ordinance effectuated compliance with the law, despite the absence of a finding of inconsistency. On remand, the lower court held that the law “requires an initial finding of inconsistency by the governing body when it adopts a zoning amendment which is in fact determined to be inconsistent with the master plan.” Specifically, the lower court reasoned that the “whereas” clauses in the ordinance were drafted “in the mistaken belief that the re-zoning was ‘substantially consistent’ with the Master Plan and therefore cannot be used to now justify inconsistency with the Master Plan.” The Appellate Division concurred and pointed out that “[b]y requiring contemporaneous passage, the law not only provides an avenue for public scrutiny of the action (including a record for judicial review) but, perhaps more importantly, ensures that the inconsistency is clearly recognized and rationalized when the action is taken. There is a significant difference between contemporaneous debate and post hoc rationalization.” Consequently, the Court concluded that “before adopting a zoning amendment inconsistent with the master plan, the governing body must expressly recognize the inconsistency. ... Recognition of inconsistency triggers the requirement of a full majority vote.” The Appellate Division also noted that the planning board was entitled to identify provisions in any proposed zoning amendment which are inconsistent with the master plan. Here, the planning board also had found the amendment to be consistent with the master plan. As to this issue, the Court said, “[a]lthough not necessary to our decision, we are persuaded that the planning board’s failure to find inconsistency would not have been fatal to the ordinance if the governing body had expressly recognized the inconsistency.”

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